The Internet’s Instapundit, aka the Blogfather, is at HLS’s Con Con Con. As a constitutional law professor, he’s excited about the idea of a constitutional convention – too excited, perhaps. Updates below!
Prof. Reynolds said that there is a “widespread sense that something is wrong.” There is “bipartisan agreement” that we have the “worst political class in the country’s history.”
He defines himself as a “libertarian transhumanist”, and have discussions about mind-uploading and the rights of beings with artificial intelligence. “Small c conservatives” would look at this differently: a constitutional convention may cure some of the intellectualism and attack of the political class. However, it can be a dangerous proposition, one akin to hitting the ‘hyperspace’ button in the game Asteroids.
Prof. Reynolds queried as to whether or not we are in need of such a convention. According to Rasumussen, only 17% of the people think that the government has the consent of the government – a number which is approximately half the number of the late eighteenth-century, pre-Revolutionary War number. Yet America is relatively strong country, even with the last few years of economic difficulty.
Since it’s analogy time at Con Con Con, the constitution is akin to an operating system, with legislation and regulations akin to applications. Specific social problems ought not be dealt with in the operating system, but as an application; this leads to less instability should something go wrong and is easier to fix. The operating system is not meant to address little problems, but to set the structure and allocate the resources for the users. (Anyone else in geek heaven?)
A Constitutional Amendment should change the structure of the system, but is not meant to be used to prevent future change. Most Constitutional Amendments are “structural re-allocations of power between the states, the federal government, and the people.” The only example of taking a legislative issue and promoting it to a constitutional issue was Prohibition, and also (in Prof. Reyonld’s opinion) the biggest failure.
After Robert Bork, it was suggested that the Ninth Amendment ought to be re-written with “And we really mean it” at the end. Prof. Reyonlds would add the same to the Tenth Amendment. (He notes that people do not laugh so much at those Amendments as they used to.) James Madison believed that government should set ambition against ambition to reign in power. Problematically, Congress will not control its own power; no other branch in the federal government has an ‘institutional incentive’ to restrict Congressional power. Prof. Reynolds, via Robert Heinlein, suggests a “House of Repeal,” in which a branch of government would be mandated with repealing Congressional bills. Such a House would have an incentive to give us less law; members would run on reelection on which bills they would repeal.
Another possibility would be “No representation without taxation.” Our progressive income tax system results in the top 1% paying more in taxes than the bottom 95% combined. Thus, most voters have little incentive to reign in federal spending. (I would add that people have an opposite incentive as well: since someone else is paying the bills, there is a desire to vote oneself – or vote for representatives who give oneself – as many goodies as possible. It’s sort of like how the boarder who isn’t paying the utility bills take hour-long showers and jack up the heat to 75 degrees in the summer.) Of course, the Twenty-Fourth Amendment squarely prohibits the state or federal government from restricting the right to vote on the failure to pay a tax.
Next idea: a balanced budget amendment. Prof. Reynolds is sceptical of the ability of a government to implement it: for example, there is an exception for times of “armed conflict”, so unless one goes “the full Ron Paul”, such a balanced budget amendment will not really change spending patterns.
State Constitutions often discuss how money can be borrowed or spent, how people can be taxed, etc.; states cannot print their own money. Perhaps, state legislatures are more venial than federal legislatures, but that is not true in the twenty-first century.
Other structural changes proposed by Prof. Reynolds is term limits. Those in the political class, regardless of party, have more in common with each other than with anyone back home. He quoted Will Rogers: “America has no native criminal class except for Congress.” Akin to human vis-a-vis fish reproduction, the diversity of the offspring is helpful – likewise, an end to term limits may create more turnover and energy in Washington. Prof. Reynolds is also concerned about the role of gerrymandering. There is also the Truth in Legislation Amendment, which would require the single-subject rule that a lot of states require (e.g. Tennessee). It is then impossible to pass omnibus bills, stuffed with special interests.
Prof. Reynolds also suggests an Amendment which would prohibit U.S. Senators from ever running for President. While very few Senators reach the highest office, most of them desire to be in the White House, and it would attract a different type of person to the Senate – one who would desire to be the best Senator that she could be.
He then suggests that we look to state constitutions for ideas for limiting federal government, which are a treasure trove of limits on power. Hey, don’t go all “laboratories of experimentation on us”, Professor!
Now, for the downsides to a Constitutional Convention: akin to the Sword of Damocles, its value is that it hangs, not that it falls; likewise, the threat of such a Convention can keep Congress in check. Likewise, a Convention may be limited in its ability to see the importance of future events, or may overestimate the importance of current events.
Question and Answer Session:
“We update our operating systems frequently; no one us are running Windows 95, and we’re doing the equivalent of Windows 1795.”
Blogfather: the problem is that we would be updating from something that works relatively well to something that may not work at all. There is no real equivalent to “back up everything before you upgrade.”
“There is a distinction between Congress and the citizens. Control of incumbents at the federal and state level. How would a citizens’ convention be structured, called, held accountable, be responsible, and be intellectually competent?”
Insty: If you were looking for a single structural constitutional amendment, you would design one that would bring such a convention or a constitutional change without the input of elected officials.
Former Chief Justice of the Michigan Supreme Court: disappointed that the keynote of the right expressed this particular point of view, but said that an Article V Convention is not a Constitutional Convention; the former amends the existing Constitution, but does not [necessarily] re-write the entire Constitution.
Prof. Reynolds: He is not necessarily as blase about the Constitutional limits on an Article V Convention, but acknowledges that the requirement of passing 3/4ths of the state is good. (Should 3/4ths of the states pass something mental, we have more problems than an Article V Convention.)
Question about Congress not responding to calls for reform in the face of an Article V Convention. Instapundit responds that if Congress refuses to act, it is not a pocket veto; it’s a repudiation of the desires of the people and a slap in the face.
The internet allows people to organise on their own, without a middleman, church, traditional news source, etc. This may change a hypothetical Constitution, but Prof. Reynolds believes that a lot of Americans would tune it out.
Retired lawyer: “Who do you want to amend the Constitution? The people or five old guys on the Supreme Court?” Theory that we should/could amend the Constitution to require interpretation under standard rules of contract law (Williston Four Corners Doctrine).
Prof. Reynolds: the Supreme Court amends the Constitution, judicially, on a pretty regular basis, which indicates that we ought not worry too much about changes to the Constitution. (He notes, however, that Dred Scott brought us to the Civil War.) The Supreme Court pays a lot of attention to what it does, but the average voter is rationally ignorant for a rational reason. Enforceability issue: who would enforce this against the Supreme Court? “A super-duper Supreme Court!”